As humanity has struggled with its own species’ access to fundamental rights, legal protections for animals have regrettably been something of an afterthought in both politics and law. Whether anything is entitled to legal rights revolves around what status society attributes to that subject, and the reality is that the status of animals is not one of great concern to many. As such, the laws established to protect animals have had a complicated history, and in modern times, the concept struggles to even find relevant consideration in the minds of ordinary people.
Among the many challenges pertaining to drafting laws protecting animals is the requisite philosophical motivation to do so. For example, why should we even make laws to protect animals? Do other species even deserve legal protections? The more practical thinking may even suggest legislative resources should not be allocated to animal rights when lawmakers should focus instead on humans’ basic access to fundamental legal rights, both domestically and abroad. Assuming we do make laws protecting animals, what might they protect? Freedom from unnecessary harm or death? Freedom from being held in unsanitary and crowded enclosures? Should only certain wild endangered animal species be protected? Should we also regulate and control the habitat where these endangered animals naturally live? These are all valid concerns that need to be addressed before drafting meaningful laws protecting animals. Concerns such as these, and many more, have understandably inhibited progress in this area of law.
Varying philosophical theories over the course of human history have helped protect animals in law and society. One of these early theories is that animals’ very existence provides the basis to protect animal species. Later thinkers have entertained the theory that animals are capable of having emotional experiences, and their ability to feel pain might make them worthy of moral or legal consideration. In contemporary times, a theory gaining more popularity is that qualities that define personhood might entitle some animal species to various degrees of legal or moral protection. Essentially, this theory suggests that certain species, such as great apes and certain cetaceans, are capable of qualities like introspection, memory, language and empathy — much like humans. Therefore, these species are potentially due more encompassing moral and legal protections.
More practical reasons for the legal protection of animals exist simply out of necessity. For example, animals are at times the property of people. Therefore, society holds an interest in regulating the way this unique kind of property is treated, sold, dispensed with, or utilized for profit. For this reason, even animal owners devoid of an ethical conscience have an interest in the laws and policies surrounding animals. Although in an indirect way, this at least entitles animals owned as property to certain legal protections.
Regardless of which theories have guided lawmakers and society at large, the above considerations have been at least remarkable enough to shape the laws and protections for animals that exist today. In the United States, animals have historically received very few legal protections, and their mistreatment has been at times commonplace. After several centuries, animals have developed some amount of legal protections in various ways, including but not limited to animal ownership, damages for harms to pets, anti-cruelty laws, caretaking laws, laws protecting agricultural animals, state regulation of ownership, and laws protecting endangered and threatened species and their habitats. But this was not always the case.
The earliest laws in the United States protecting animals began during the first half of the 19th century in several states such as Vermont, Maine, New York and others. Early criminal laws protected animals from being harmed by others. These laws mostly protected commercially viable animals such as horses, oxen, and occasionally other forms of cattle. However, these protections fell short of including dogs and other pets. In 1866, New York was the first state to charter a committee known as the American Society for the Prevention of Cruelty to Animals (ASPCA). Thereafter, legislation was enacted to protect abandonment of “any living creature,” which was a massive step forward in providing basic protections for animals that were not considered commercially viable, such as common pets. The law further provided a duty of owners to provide care for their animals and allowed the ASPCA to seize animals being treated cruelly. New York’s act had a nationwide ripple effect, and many states across the country began to enact criminal laws for the protection of animals while simultaneously adopting state-chartered societies with authority to prosecute and take ownership of animals that were not adequately cared for. Nowadays, all 50 states have felony provisions for the most serious forms of animal cruelty.
The federal government of the United States has mostly relied on the states to effectively pass widespread anti-cruelty laws, but some federal legislation does exist. The Animal Welfare Act of 1966 (AWA) and its various amendments are one such body of federal law. The AWA was created due to serious concern in Congress over issues involving the use of animals in science, research and testing. Today, the AWA provides protections for the treatment of warm-blooded mammals in research facilities, zoos and exhibitions, breeding, wholesale distribution, and auctions, and also provides protections for stolen pets. It also makes it a crime to knowingly sponsor, participate in, provide transport for, or promote fights between live birds, dogs and other mammals. Other forms of federal law include federal regulations on the humane slaughter of livestock, which can only be done with minimum discomfort to the animals. These regulations require that the slaughter of livestock be done through the use of carbon dioxide gas, captive bolt stunners and projectiles, gunshots and electrical currents. Although these federal laws regulate how animals are ultimately harmed and killed, they nonetheless provide a requirement that the mass killings of animals in research and agricultural farming be done in a “humane” way.
Other federal protections such as the Endangered Species Act of 1973 are designed to protect certain animal species that are determined to be threatened, endangered or nearly extinct. This law prevents certain defined species from being harassed, harmed, pursued, hunted, shot, wounded, killed, trapped, captured or collected unless approved for conservation and/or scientific purposes. States have similarly followed suit, and 46 states currently have laws protecting endangered species. Additionally, laws enacted for land conservation, such as the National Park Service Organic Act of 1916, preserve habitat and allow the National Park Service to regulate activities such as hunting and fishing on these lands. Laws like these have saved species such as the iconic bald eagle from extinction and preserved natural habitat for formerly endangered species like the American alligator.
An alternative way animals receive protections in the United States is through the property rights of their owners. These property rights include the right to convey, the right to consume, the right to use as collateral, the right to obtain natural dividends from the animals, and the right to exclude others. Through the tort system, an animal owner can seek damages for the injury of their animals under theories of trespass, negligence and gross negligence. In such a way, a property owner of an animal can receive compensation for an animal that has been wrongfully injured or killed by another. Although under this legal theory animals are not given direct rights, they are still nonetheless indirectly protected from the wrongful acts of others.
One of the biggest issues regarding animal rights in the United States is the problem of standing. Courts are largely concerned with expanding the ability to allow anyone to sue on behalf of animals. This is not an issue when an animal is owned by a plaintiff, but if someone seeks to address issues pertaining to animals they do not personally own, many issues arise. In a situation where someone is only remotely concerned about an animal’s well-being, standing cannot usually be established because the plaintiff cannot show they have a property interest, a financial stake in the events, or any injury-in-fact. More recently, courts have begun entertaining alternative theories to overcome the issue of standing, which has been effective in furthering legal protections for animals.
Although lawmakers are in many ways reluctant to pass new laws protecting animals, a growing social reform for the legal rights of animals has gained intellectual traction in modern America. The movement became popular in the 1980s. Since then, annual conferences have been held nationwide by organizations such as the Animal Legal Defense Fund (ALDF) and the People for the Ethical Treatment of Animals (PETA), which spread awareness of animal cruelty and are dedicated to establishing and defending the rights of all animals. Additionally, there are now animal rights law review journals published by premier law schools across the country, and animal rights courses have been taught at world-renowned educational institutions such as Harvard Law School.
As the legal community has made strides in the last few decades in this area of law, the pathway for greater legal recognition for the protection of animal interests is beginning to develop. Over the last few decades, violations of state animal protection laws that were once misdemeanors have now become felonies, federal regulations have been passed protecting domestic and wild animal species, and courts have begun to allow animal rights groups the standing they need to litigate on behalf of animals. If changes in the past regarding animal rights laws are any indication of the future, it shows that more positive change is hopefully on the horizon.
Timothy Brown is an associate in the Boston office of Lewis Brisbois and a member of the Products Liability, Toxic Tort & Environmental Litigation, and OSHA Safety and Health practices. Brown’s prior experience includes several years representing plaintiffs in matters involving serious personal injury, medical malpractice, and nursing home negligence. During this time, Brown practiced across the commonwealth in district and superior courts. Prior to becoming an attorney, he gained valuable experience in the legal division of a busy state department assisting with civil litigation matters. He has also gained valuable experience as a law clerk with the City Solicitor’s Office of a local municipality outside of Boston.